Availability of Class Actions in Arbitration (Part 2‪)‬

Part one of this article introduced the issues, analyzed the policies favoring class proceedings versus the policies favoring arbitration, and found that arbitration agreements are generally enforceable where a class claim can be brought. Part one also summarized rulings that hold that class proceedings may be held in arbitration, and that waivers of rights to proceed as class arbitration agreements are generally enforceable. However, the particular issue of cases involving de minimus recoveries has given the courts pause, and many courts have refused to send a case to arbitration, or have stricken a class proceeding waiver, where the de minimus nature of the individual recoveries makes arbitration unfeasible. Part two will examine some additional cases and circumstances in which waivers have been enforced; analyze how courts determine the availability of class proceedings where not specifically addressed in the agreement; and provide some practice pointers regarding class issues in arbitration agreements generally.